Another instance, much more recent, involves the FBI causing an internet blackout at some hotel villas in Las Vegas so agents could then pose as repairmen and enter the suites without a warrant to search for evidence in a gambling investigation.

The New York Times criticized the techniques in an editorial, Deceptions of the FBI, and FBI Director James Comey has now responded, justifying the FBI's actions. Shorter version: Of course we lie and impersonate people.

Interestingly, on the bomb threat case, Comey writes:

That technique was proper and appropriate under Justice Department and F.B.I. guidelines at the time. Today, the use of such an unusual technique would probably require higher level approvals than in 2007, but it would still be lawful and, in a rare case, appropriate.

Isn't that an admission that in all but rare cases, the FBI's actions are inappropriate?

Also, his comment that today, "higher level approvals" would be needed, seems to be a reference to approval at higher agency levels, not judicial approval. In the bomb threat case, the FBI obtained an interception order from the Court based on probable cause for use of the spyware (called a CIPAV, which stands for Computer Internet Protocol Address Verifier.) But it didn't disclose details, such as that it planned to insert the spyware in a manufactured news article. The affidavit (which begins on page 31 of this document obtained via FOIA request) states as to the use of the CIPAV:

The exact nature of these commands, processes, capabilities, and their configuration is classified as a law enforcement sensitive investigative technique, the disclosure of which would likely jeopardize other on-going investigations and/or future use of the technique.

As I wrote in my earlier post:

It's a complicated process, which begins when a state or federal law enforcement agency requests such help from the CEAU. The request goes up the chain of command, and if approved, it goes to an AUSA in the district who submits a request to the court for a warrant, supported by a probable cause affidavit. The affidavit tells the court what they are going to do but doesn't give details about the particular spy tool or how they intend to trick the target into activating it, since it wants to keep such specifics to itself. The court then enters an order granting the request and they're off to the races.

Despite the failure to advise the court of the the trickery it planned to use to get the suspect to open the spyware, Comey ends his response to the New York Times with:

Every undercover operation involves “deception,” which has long been a critical tool in fighting crime. The F.B.I.’s use of such techniques is subject to close oversight, both internally and by the courts that review our work.

In light of the disclosures in the FOIA documents, his assertion there is "close oversight" and court review of the FBI's "work" and use of these techniques seems dubious, at best.

The New York Times opined:

The F.B.I. has a history of pushing the limits that protect Americans’ civil liberties. And it has continued to broaden agents’ investigative powers in troubling ways. The deceptive tactics used in Las Vegas and Seattle, if not prohibited by the agency or blocked by courts, risk opening the door to constitutional abuses on a much wider scale.

I opined in my earlier post that these two incidents probably only reach the tip of the proverbial iceberg. One example that comes to mind which affects the privacy of everyone, not just suspects, is the use of "stingray" or other cell site simulator devices that are used to locate a suspect's phone but in the process, capture phone numbers and data from the cell phones of everyone in the neighborhood. A stingray device simulates a cell phone tower and by its strength, tricks all cell phones in the area into using it. Since it's not really a cell phone tower, the cell phone's information goes right to the stingray device.

Law enforcement takes the position the stingray is just an enhanced pen register which only requires a court order, not a warrant based on probable cause. They are being very mum on whether the courts are even advised in the application for the pen reqister that a stingray or WIT technology will be used. Emails from DOJ to agents obtained via an FOIA request suggest the judges were not advised.

A Justice Department document obtained by the ACLU of Northern California shows that federal investigators were routinely using a sophisticated cell phone tracking tool known as a "stingray," but hiding that fact from federal magistrate judges when asking for permission to do so.

Stingrays and similar devices essentially impersonate cell phone towers, allowing them to pinpoint the precise location of targeted cell phones (even inside people's homes) and intercept conversations. They also sweep up the data of innocent people who happen to be nearby. By withholding information about this technology from courts in applications for electronic surveillance orders, the federal government is essentially seeking to write its own search warrants.

The DOJ emails received by the ACLU are here. One email says:

As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement's WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual's location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates…

More in this news article.

A pen register is designed to capture numbers dialed by a specific phone. (A trap and trace captures the phone numbers of incoming calls.) What if the agents don't know the suspect's phone number, just his address or location? Can a pen register order that is not based on a showing of probable cause authorize agents to sit in their car outside a suspect's house and use a stingray or other simulator device to trick all phones in the neighborhood to connect to its phony cell tower, so that they can both learn the suspect's cell phone number and capture the phone's information? If they use a simulator device for this dual purpose under the authority of a pen register order, did they inform the court of their intent in their application for the pen register? No one knows, because most applications and orders are sealed.

One Magistrate Judge, Brian Owsley, told the Wall St. Journal :

In late 2010 or early 2011, he says, a prosecutor wanted to use a pen register to get the phone number of an unknown cellphone used in the Three Rivers federal prison in southern Texas. Mr. Owsley couldn't see how a pen register could be used to do such a thing. He says he figured the U.S. wanted to use a stingray...

He says he pressed the prosecutor about the legal authority to do so. Before Mr. Owsley could get a response, prison officials located the cellphone, making the issue moot. The case remains under seal, making it impossible to identify the prosecutor involved.

More on Judge Owsley's concerns about stingray use and pen registers here. Here is one of his rulings..

How the simulators work:

Called, variously, "IMSI catchers" or "Stingrays" (the trade name of the dominant product marketed to law enforcement), these devices identify the active cellular telephones at a particular location. A Stingray is essentially a portable "fake" cellular base station that can be carried (or driven) to the location of interest. Once enabled, the Stingray presents a strong signal to the cellular phones within its range, causing nearby phones to attempt to register with the Stingray as if it were a real base station operated by the cellular carrier. But instead of providing service, the device simply records the identity of each cellular phone that registered with it and then shuts itself down.

... Stingrays come in a variety of configurations, including semi-portable models equipped with directional antennas that can be used to identify the phones in particular streets, houses or rooms....Stingrays are typically used early in an investigation to identify suspects and their telephone numbers. Once identified by the Stingray, conventional CDR requests, pen registers, or content taps can be used for further tracking.

Stingrays “emulate a cellphone tower” and “force” cell phones to register their location and identifying information with the stingray instead of with real cell towers in the area.

Stingrays can track cell phones whenever the phones are turned on, not just when they are making or receiving calls.

...When in use, stingrays are “evaluating all the [cell phone] handsets in the area” in order to search for the suspect’s phone. That means that large numbers of innocent bystanders’ location and phone information is captured.

I wonder what former Supreme Court Justice Louis Brandeis would make of Comey's casual attitude to the FBI's use of deception in criminal investigations. From his dissent in 1928 in Olmstead v. U.S. (277 U.S. 438):

“Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example."

..."The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.”

One more Brandeis quote, sourced to the Cleveland Plain Dealer in 1912:

“If we desire respect for the law, we must first make the law respectable.”